General Mattis Needs a Waiver from Congress to Serve as Secretary of Defense

Pentagon building in Washington, D.C. (Reuters photo: Jason Reed) The seven-year rule is constitutionally valid, though Congress should repeal it because it’s bad policy.

As one would expect, Shannen Coffin has made as good a case as can be made for his position against legislative limitations on the president’s appointment power — in this instance, a statutory ban on service as secretary of defense by retired officers who are not at least seven years removed from military service. Alas, I am not persuaded, mainly for reasons laid out in my Saturday post on this subject (which, as Shannen notes, was published after Shannen wrote his latest piece but before his piece posted, so while he anticipated most of my arguments, his is not a direct response to mine). To my mind, the authorities Shannen cites either are not directly on point or actually undermine his position. I note, further, that Shannen himself correctly intimates that the matter is not cut-and-dried when he hedges that the limitation that has prompted our discussion is “almost certainly” unconstitutional.

I have two principal disagreements with Shannen’s argument.

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The first involves what is meant by the president’s power to nominate. I obviously have no quarrel with the proposition that this power is the president’s alone, such that Congress may not exercise it. I reject, however, the notion that when Congress legislates reasonable qualifications for a position that Congress is under no obligation to create in the first place, this is the functional equivalent of usurping the president’s power to nominate a person to fill the position.

To go back to basics, if there is no position until Congress creates the position, then the legislation of qualifications for the position cannot be inappropriate if they are undeniably relevant to a) the position and b) Congress’s legitimate regulatory interests under Article I. Such legislation is not a usurpation of presidential power; it is the legislative establishment of an office for which the president is then unilaterally empowered to nominate a candidate.

I assume we can all agree that if Congress had not created the office of secretary of defense, then the president could not do so. Consequently, if only Congress has the constitutional authority to create the office and define the duties of the office, why shouldn’t Congress be able to prescribe qualifications for the office that are designed to facilitate the successful execution of the duties? Doing so does not mean the president’s authority to nominate has been limited. It just means the president must nominate within the limits Congress has established by law — which makes sense because there would be nothing for the president to nominate anyone to if Congress had not established the position.

Consequently, I am not moved by Shannen’s reliance on Hamilton’s arguments in TheFederalist and on the Supreme Court’s decision in Buckley v. Valeo. We are not, as Shannen posits, talking about a situation in which Congress is choosing the nominee. The president is still the only one doing the nominating; he simply must do so within the framework of what Congress has legislated. Shannen says that allowing Congress to establish qualifications for offices that it creates is “wholly inconsistent with the Constitution’s text.” I don’t see it as remotely inconsistent . . . unless you believe that prescribing qualifications is the equivalent of nominating. I see that the two things are related; I don’t think they are close to being the same.

At least, I don’t think so — as long as Congress is acting in good faith. Congress’s powers in this are not limitless. As I contended yesterday, Congress could not, under the guise of prescribing qualifications for secretary of defense, exercise commander-in-chief powers (combat operations, for example, are an executive function); nor could Congress attempt to make the secretary removable only for just cause (because the Constitution vests all executive power in the president, all subordinate executive officials exercise the president’s power and must be removable at the president’s pleasure).

For the same reasons, Congress could not legitimately prescribe qualifications that had the effect of forcing the president to nominate a particular person. But qualifications are permissible if a) they reflect Congress’s legitimate constitutional areas of responsibility and b) the president retains the unilateral power to nominate a qualified person.

This gets us to my second disagreement with Shannen: the failure to factor in Congress’s significant constitutional powers over military matters and the concerns of the Framers that they reflect.

Constitutional authorities and rights do not live in a vacuum. They coexist and often compete with other authorities and rights. The president’s nomination power is not absolute. It is not only checked by the Senate’s advice-and-consent function; it cannot even be exercised unless Congress creates offices for which nominations are needed.

There is probably no area in which constitutional authorities compete as much as in military affairs. The president is commander in chief and is empowered to use force unilaterally when the United States is threatened or attacked. Congress, however, decides whether we have national armed forces at all, how they are organized, how they are regulated, how they are paid for, and whether war and other combat operations are authorized.

The Framers had serious reservations about a permanent national military force and were determined to allay those concerns by providing for significant civilian control.

Thus, Congress, like the president, has legitimate and weighty interests in the composition and functions of the armed forces. This is why I believe that Shannen’s position is undercut by his discussion of Justice Kennedy’s meanderings in Public Citizen v. Department of Justice . . . to the limited extent there is relevance in a concurring opinion from a case in which the Court’s majority opinion declined to adopt the position Shannen now advocates, a case that, in any event, did not involve Congress’s legislation of qualifications for an executive office it created.*

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Kennedy reasoned that Congress could not impose limitations “where the Constitution by explicit text commits the power at issue to the exclusive control of the President” (my italics). For argument’s sake, let’s say that there is persuasive force in Kennedy’s non-binding assertion; Shannen is assuming that “the power at issue” in the matter we are discussing is solely and narrowly the nomination of the secretary of defense.

I disagree. Also at issue is Congress’s power — set forth in the Constitution’s “explicit text” — to regulate the armed forces. That power, moreover, is informed by the Framers’ serious reservations about a permanent national military force and their determination to allay those concerns by providing for significant civilian control — the imperative that explains why Congress gets to decide whether we have federal armed forces at all, as well as how they are structured.

Not only does Congress have salient constitutional powers; the limitation that lawmakers included in creating the position of secretary of defense is directly related to the Framers’ objective of ensuring civilian control. They achieved this by requiring that the secretary of defense be a civilian separated by several years from military service — in theory, one who is apt to see himself more as a civilian than as a military officer.

#related#Finally, I should point out that I do not believe that this limitation in the National Security Act is good policy. Presidents and the Senate are well aware of the problems that can arise by having a defense secretary who is too close to the military. Furthermore, there are plenty of other mechanisms — besides the president’s choice of nominees and the Senate’s advice-and-consent function — that promote civilian control. (The bureaucracy, congressional oversight and budgetary power, and the training of our military leap to mind.) Many armed-forces veterans identify more as military people than as civilians, no matter how many years have passed since discharge; by contrast, many active military officers are finely attuned to, and dedicated to the principle of, the need for civilian control. Thus, all an arbitrary years-since-separation limitation really does is interfere with the president’s ability to nominate meritorious retired officers, such as George Marshall and James Mattis. If I had my druthers, I’d see Congress repeal the limitation and leave the matter to the judgment of the president (who should have deference in the matter of choosing who will exercise his powers and implement his policies) and the Senate.

The issue we are discussing, though, is not what the best policy is; it is what the Constitution permits. The Constitution endows Congress with significant authority over the military. A statutory requirement that the secretary of defense — a position Congress has created — be separated from military service for seven years is rationally related to Congress’s incontestable interest in ensuring civilian control over the armed forces that Congress has created and regulates. Therefore, I believe the limitation is constitutionally valid. Since it is not effective policy, I would prefer to see Congress repeal it; and at a minimum Congress should waive it so the highly deserving General Mattis may serve as secretary of defense. I believe, however, that the waiver is necessary.

* In Public Citizen, a district court held that a congressional statute, the Federal Advisory Committee Act (FACA), was unconstitutional to the extent that it would require the American Bar Association (ABA) to reveal publicly the advice it gives the Department of Justice on potential nominees for federal judgeships. The judge reasoned that this would infringe on the president’s unilateral Article II power to nominate judges. The Supreme Court declined to endorse this ruling as correct, much less to rely on it, holding instead that FACA did not apply to the ABA’s consultations with the Department of Justice. Justice Kennedy concurred in the judgment (joined by Chief Justice Rehnquist and Justice O’Connor), but his alternative reasoning in support of the district court’s conclusion did not command a majority of the Court.

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